An interesting article from Louise Wilson and Michael Hoskins at Freeths looking at the recent Pipia v BGEO Group Ltd case where the court looked at the concept of control of documents within a group of companies.
As set out in the article, the court set out three elements that need to be considered to determine whether a party has control over documents:
- Consent from the subsidiary in respect of documents;
- How the documents would be provided; and
- The quality of consent – is it free and unfettered access or responding to specific requests.
In this case, the court looked at the practical evidence to determine whether control existed or not, finding that there was not sufficient grounds to determine that control did not exist.
In addition to control, this case emphasises the need to not have too limited a view when determining where relevant documents may exist on an organisation's systems (regardless of whether the party is the parent or the subsidiary). That does not mean widening the population of documents that ultimately get processed and reviewed, but it does mean appropriately considering the systems and then making robust decisions on how to manage them, which requires both a technical and a legal perspective.
The Courts have long been interested in how parties in litigation approach documents. The Civil Procedure Rules (“CPR”) require “disclosure” – the process of informing other parties of the relevant documents that are held. This applies whether the document supports your case or even if it is unhelpful. In the modern world of course, documents are pervasive – emails, databases, spreadsheets, letters, text messages, videos, metadata – all of these may be subject to disclosure. But in a corporate group structure, relevant documents may be held by different companies, which may not be party to the claim. In that case, how does the Court approach disclosure? The key issue is control, and in Pipia v BGEO Group Ltd  EWHC 402 (Comm), the High Court has provided some helpful guidance on control